the disenchantment of logically formal legal rationality

The Disenchantment of Logically Formal Legal Rationality,or Max Webers Sociology in the Genealogy of the Contemporary Mode of Western Legal ThoughtDuncan Kennedy*

Introduction Max Weber began his sociology of law with a description of the then present of Western legal thought, along with a brief summary of its previous stages. This appreciation begins with a summary description of the Western legal thought of Webers time, as it looks from our present one hundred years later, emphasizing the contrast between the mainstream of his time, now called Classical Legal Thought, and its critics in the social current. Part II presents Webers sociology of law, comparing and contrasting his approach with that of the social current. The most striking thing about Webers sociology of law, from the perspective of legal theory a century after he wrote, is his ambivalent endorsement of legal formalism. This entailed rejection of the social currents critique, a critique that is close to universally accepted today. In Part III, I explain Webers attitude toward legal formalism as motivated by the internal requirements of his theory of domination, in which, after the demise of all earlier modes of legitimation, the Iron Cage of modernity is held together by bureaucrats defined by their adherence to that mode of legal reasoning. Part IV argues that Webers approach was inconsistent with the irrationalist and decisionist strands in his own theory of modernity, a theory that helps in understanding the current situation of legal thought, if we take the un-Weberian step of applying it to legal formalism. Finally, Part V

* Carter Professor of General Jurisprudence, Harvard Law School. This Article will appear as a chapter in C. Camic, P. Gorski, & D. Trubek eds., Max Webers Economy and Society: A Critical Companion, to be published by the Stanford University Press in 2005. Thanks to David Trubek for introducing me to Webers sociology of law thirty-five years ago, for his subsequent writings on Weber, for inviting me to the conference for which this Article was written, and for his detailed comments on an earlier draft of this piece. Errors are mine alone.

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offers an interpretation of the contemporary mode of legal thought as an episode in the sequences of disenchantment and reenchantment suggested by Webers philosophy of history, and uses Weberian elements to construct a distinct contemporary ideal type of legal thought. The very brief conclusion suggests the strong affiliation between Weber (read as above) and one of the sects of modern legal theory, namely critical legal studies.

I. Western Legal Thought in 1900 Weber produced his sociology of law at a moment of dramatic transition in Western legal thought. In 1900, there was a well defined mainstream mode, which we now customarily call Classical Legal Thought (CLT), and two challengers: what I will call the social current, or socially oriented legal thought, and Marxist legal thought. This Part presents the classical and social modes. Webers sociology presents CLT as the mode of the present. His analysis of CLT is heavily indebted to the socially oriented critics who developed a rather elaborate picture of their classical opponents, a picture that remains at least largely plausible to this day. But, as we will see in Part II, Weber had his own distinctive critique of CLT, and also a critique of the social.A. Classical Legal Thought According to its social critics, according to Weber, and according to most (not all) of todays historians, the late nineteenth-century mainstream saw law as having a strong internal structural coherence based on the three traits of exhaustive elaboration of the distinction between private and public law, individualism, and commitment to legal interpre1 tive formalism. These traits combined in the will theory. In the social jurists version, the will theory held that the private law rules of the advanced Western nation states were well understood as a set of rational derivations from the notion that government should help individuals realize their wills, restrained only as necessary to permit others to do the same. In its more ambitious versions, the will theory made public as well as private law norms follow from this foundational com-

1. See generally James Gordley, The Philosophical Origins of Modern Contract Doctrine (1991); Franz Wieacker, A History of Private Law in Europe with Particular Reference to Germany (Tony Weir trans., Clarendon Press 1995); Roscoe Pound, The End of Law as Developed in Juristic Thought II, The Nineteenth Century, 30 Harv. L. Rev. 201 (1917). For the literature on the will theory, see Duncan Kennedy, From the Will Theory to the Principle of Private Autonomy: Lon Fullers Consideration and Form, 100 Colum. L. Rev. 94 (2000) [hereinafter Kennedy, From the Will Theory]. The summary in the text is a slightly modified version of that in Duncan Kennedy, Legal Formalism, in 13 Encyclopedia of the Social and Behavioral Sciences 8634 (Neil J. Smelser & Paul B. Baltes eds., 2001).

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mitment (for example, by generating theories of the separation of powers from the nature of rights). The will theory was an attempt to identify the rules that should follow from consensus in favor of the goal of individual self-realization. It was not a political or moral philosophy justifying this goal; nor was it a positive historical or sociological theory about how this had come to be the goal. Rather, the theory offered a specific, will-based, and deductive interpretation of the interrelationship of the dozens or hundreds of relatively concrete norms of the extant national legal orders, and of the legislative and adjudicative institutions that generated and applied the norms. Outside or above legal theory, there were a variety of rationales for the legal commitment to individualism thus understood. Of these, only natural rights theory was also highly relevant on the inside, that is, in the development of the technique of legal analysis based on deduction. Natural rights theorists had elaborated the will theory, beginning in the seventeenth century, as a set of implications from their normative premises, and their specific legal technique was the direct ancestor of the legal formalism that the socially oriented reformers were to attack in its positivized form. In the nineteenth century, the German historical school (Savigny) developed a positivist version of normative formalism. National systems of law reflect as a matter of fact the normative order of the underlying society; such a normative order is coherent or tends toward coherence on the basis of the spirit and history of the people in question; legal scientists can and should elaborate the positive legal rules composing the system on the premise of its internal coherence. In the middle and late nineteenth century, the German Pandectists (Puchta, Windschied) worked at the analysis of the basic conceptions of the German common law version of Roman law with the aim of establishing that this particular system could be made internally coherent, and also be made to approach gaplessness. Many Continental legal scholars understood the German Civil Code of 1900 as the legislative adoption of this system. In France, Britain, and the United States, the historical school was a minor tendency, but the same conception of a will theory combining individualism and deductive form gradually supplanted earlier ways of understanding private and, in the United States, public law. The normative or outside force for the theory might come from utilitarianism, or from Lockean or Kantian or French revolutionary natural rights, or from a variant of evolutionism (the movement of the progressive societies has been from contract to status; social Darwinism). But however derived, normative individualism was closely connected with logical method in the constitution of some version of the will theory.

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The will theory in turn served a variety of purposes within legal discourse. It guided the scholarly reconceptualization, reorganization, and reform of private law rules, in what the participants understood as an apolitical rationalization project. But it also provided the discursive framework for the decision of hundreds or perhaps thousands of cases, throughout the industrializing West, in which labor confronted capital and small business confronted big business. And it provided an abstract, overarching ideological formulation of the meaning of the rule of law as an essential element in a Liberal legal order. B. The Social as a Mode of Legal Thought The inventors of the social include Jhering, Ehrlich, Gierke, Gny, Saleilles, Duguit, Lambert, Josserand, Gounot, Gurvitch, Pound, and 2 Cardozo. They had in common with the Marxists that they interpreted the actual regime of the will theory as an epiphenomenon in relation to a base, in the case of the Marxists, the capitalist economy, and in the case of the social, society conceived as an organism. The idea of both was that the will theory in some sense suited the socio-economic conditions of the first half of the nineteenth century. But the social people were anti-Marxist, just as much as they were anti-laissez faire. Their goal was to save Liberalism from itself. Their basic idea was that the conditions of late nineteenth-century life represented a social transformation, consisting of urbanization, industrialization, organizational society, globalization of markets, all summarized in the idea of interdependence. Because the will theory was individualist, it ignored interdependence and endorsed particular legal rules that permitted anti-social behavior of many kinds. The crises of the modern factory (industrial accidents) and the urban slum (pauperization), and later the crisis of the financial markets, all derived from the failure of coherently individualist law to respond to the coherently social needs of modern conditions of interdependence. From this is analysis, they derived the ought of a reform program, one that was astonishingly successful and globalized even more ef2. On the social as legal consciousness, see generally Nstor de Buen Lozano, La Decadencia del Contrato (1965); Wieacker, supra note 1; G. Edward White, From Sociological Jurisprudence to Realism: Jurisprudence and Social Change in Early Twentieth-Century America, 58 Va. L. Rev. 999 (1972); see also Andr-Jean Arnaud, Les Juristes Face la Socit du XIXime Sicle Nos Jours 15666, 16869 (1975); Morton J. Horwitz, The Transformation of American Law 1870 1960: The Crisis of Legal Orthodoxy 16970, 18990, 21011 (1992); Duncan Kennedy & MarieClaire Belleau, Francois Gny aux tats-Unis, in Francois Gny: Mythes et Realits, 18991999, Centenaire de Mthode dInterprtation et Sources en Droit Priv Positif 298303 (Claude Thomasset et al. eds., 2000); Kennedy, From the Will Theory, supra note 1, at 11922, 16075. The summary in the text is a slightly modified version of that in Duncan Kennedy, Two Globalizations of Law and Legal Thought: 18501968, 36 Suffolk U. L. Rev. 631 (2003).

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fectively than classical legal thought, through many of the same mechanisms, but also because the social became the ideology of many thirdworld nationalist elites. There was labor legislation, the regulation of urban areas through landlord/tenant, sanitary, and zoning regimes, the regulation of financial markets, and the development of new institutions of international law. Just as with CLTs will theory, the abstract idea of the social appealed to a very wide range of legitimating rhetorics. These traversed the left/right spectrum, leaving out only Marxist collectivism at one extreme and pure Manchesterism at the other. Thus, the social could be based on socialist or social democratic ideology (perhaps Durkheimian), on the social Christianity of Protestant sects, on neo-Kantian situational natural law, on Comtean positivism, on Catholic natural law 3 as enunciated in Rerum Novarum and Quadrigesimo Anno, on Bismark/Disraeli social conservatism, or on early fascist ideology. Regardless of which it was, the slogans included organicism, purpose, function, reproduction, welfare, instrumentalism (law is a means to an end)and so anti-deduction, because a legal rule is just a means to accomplishment of social purposes. A crucial part of their critique of Classical Legal Thought was their claim that it maintained an appearance of objectivity in legal interpretation only through the abuse of deduction. Many advocates of the social argued that various groups within the emerging interdependent society, including, for example, merchant communities and labor unions, were developing new norms to fit the new social needs. These norms, regarded as valid living law, rather than deduction from individualist postulates, should, and also would, in this legal pluralist view, be the basis for legislative, administrative and judicial elaboration of new rules of state law. Whereas the social was spectacularly successful as a legislative reform program, the social as a mode of legal thought underwent the same kind of brutal discrediting that had befallen CLT. We will take up the reasons for this, and Webers role in it, below.

II. Webers Sociology of Law The best way to understand the chapter on The Sociology of Law 4 in Economy and Society is as an analysis of CLT, presented as just the way we do things now, combined with an historical narrative of how CLT came into existence and a critique of the critique then being leveled against it by the social current. This same sociology of law was an important element in the construction of Webers broader sociology of domi3. Pope Leo XIII, Rerum Novarum (1891); Pope Pius XI, Quadrigesimo Anno (1931). 4. II Max Weber, Economy and Society: An Outline of Interpretive Sociology 641900 (Guenther Roth & Claus Wittich eds., Univ. of Cal. Press 1978) (19211922).

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nation in modern capitalist society, but this aspect of the story is reserved for Part III. A. Webers Methodology versus the Methodology of the Social Current Weber was substantively in sympathy with a large part of the social 5 legislative reform program. But, although he never, as far as I know, stated it explicitly, his methodology is well understood as a root and branch attack on and an alternative to that of the social people. First, Weber is famous for his insistence on a sharp distinction between the sociological is and the ethical or political ought. From The Meaning of 6 Ethical Neutrality in Sociology and Economics and Objectivity in 7 8 Social Science and Social Policy through Science as a Vocation, Weber argued that the very maneuver that defined the socialthat is, the claim that it was possible to go from an analysis of the modern social mode of interdependence, a fact, to the progressive reform agenda, an ought, could not be done. But this is only the beginning of his divergences from the method of the socially oriented critics of CLT. Weber is also famous for his opposition to emanationism, that is, to the idea that transpersonal entities like geist or humanity can figure plausibly in historical or sociological explanation. This is his explicit 9 critique of Hegelianism and of the German historical school. He applied 10 it fully to law. But Factor and Turner have persuasively argued that, in the development of the sociological categories of action and domination we will present in the next subsection, Weber was systematically and carefully reworking the superficially similar categorical scheme of Rudolf 11 von Ihering, the German founder of the social approach. The point of the reworking was to purge any suggestion that there are social purposes or a telos to social development, or an evolutionary logic that can simultaneously explain and justify legal change. In this respect, Weber was diametrically opposite to Tonneis, to Durkheim, and also to Talcott Parsons, for each of whom an organicist or5. See generally Max Weber, The Methodology of the Social Sciences (Edward A. Shils & Henry A. Finch trans. & eds., 1949) [hereinafter Weber, Methodology]; Max Weber, Roscher and Knies: The Logical Problems of Historical Economics (Guy Oakes trans., Free Press 1975) (1922) [hereinafter Weber, Roscher and Knies]. 6. See Weber, Methodology, supra note 5, at 149. 7. Id. at 50112. 8. Max Weber, From Max Weber: Essays in Sociology 12956 (Hans H. Gerth & C. Wright Mills trans. & eds., 1946). 9. See generally Weber, Roscher and Knies, supra note 5. 10. Weber, supra note 4, at 754. 11. Regis A. Factor & Stephen P. Turner, Max Weber: The Lawyer as a Social Thinker, 10 12, 2238, 4567, 7785 (1994).

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functionalist understanding of society allows us to make, if not objective value judgments, at least judgments about what to do that are the farthest thing imaginable from mere ideological preferences. For Weber, social change is a resultant of the play of social forces. These include ideals and values as well as diverse material and institutional interests, always in conflict and subject to massive applications of the law of unintended effects. For the socially oriented critics of CLT, on the other hand, there is, at the very least, a logic of social development that law can either facilitate or obstruct. 12 Finally, it is familiar that Weber was at once an appropriator and a strong critic of Marxist approaches to economic history. What he most strongly criticized was the mono-causal approach of the base/ superstructure distinction, in which legal categories reflect the mode of 13 production and legal rules serve the interests of the ruling class. This kind of criticism applies mutatis mutandis to the social approach, for which law reflects society, albeit sometimes with tragic lags, and ought to serve a depoliticized and universal interest in social development. For Weber, law is, as we might now put it, relatively autonomous, and also constitutive, rather than merely reflective. B. The Basic Categories of Webers General and Legal Sociologies This section briefly lays out the basic ideal typical categories Weber used in constructing his sociology of law. Webers categories for general sociological and for legal analysis are the basis for the categories of his sociology of domination as well. 1. General Sociological Categories Weber usefully distinguishes between action that is purpose-rational and action that is value-rational.[Social conduct may] be determined rationally and oriented toward an end. In that case it is determined by the expectation that objects in the world outside or other human beings will behave in a certain way, and by the use of such expectations as conditions of, or as means toward, the achievement of the actors own, rationally desired and considered, aims. This case will be called purpose-rational conduct. Or, social conduct may be determined, second, by the conscious faith in the absolute worth of the conduct as such, independent of any aim, and measured by some such standard as ethics, aesthetics, or religion. 14 This case will be called value-rational conduct.

12. I Max Weber, Economy and Society: An Outline of Interpretive Sociology 217 (Guenther Roth & Claus Wittich eds., Univ. of Cal. Press 1978) (19211922). 13. E.g., Weber, supra note 4, at 654. 14. Max Weber, Max Weber on Law in Economy and Society 1 (Max Rheinstein ed., Max Rheinstein & Edward Shils trans., Free Press 1954) (1925).

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Contrary to what readers sometimes think, purpose rationality is, for Weber, clearly higher than value rationality, as the order of presentation in Economy and Society shows and as is confirmed by his discussion of the ethics of acts versus the ethics of consequences in Politics as a Vocation. It is important that purpose rationality is oriented to accomplishing either a single goal in the most effective way, or some combination of goals through a balancing of costs and benefits, in each case based on calculating how the situation in which one acts will be modified for good and ill by ones action. Value rationality means that the actor has identified a rule that applies to the situation and proceeds to obey that rule, experienced as internally binding, based on some mode of legitimation that might be religious, ideological, philosophical, ethical, or whatever. The key to the conduct is that the actor obeys without considering the consequences. Once authoritatively established, the rule is the rule, and obedience is the only consideration. Action in obedience, say, to one of the Ten Commandments, or to ones conviction that the right to control your body is absolute, is value-rational.The purest type of value-rational validity is represented by natural law. The influence of its logically deduced propositions upon actual conduct may lag far behind their theoretical claims; that they have had some influence cannot be denied, however. Its propositions must be distin15 guished from those of revealed, of enacted, and of traditional law.

2. The Legal Mode of Authority (Legitimate Domination) This is Webers typology of the modes of legitimate domination:The actors can ascribe legitimate validity to an order in a variety of ways. The order can be recognized as legitimate, first, by virtue of tradition: valid is that which has always been. Second, the order may be treated as legitimate by virtue of affectual, especially emotional, faith; this situation occurs especially in the case of the newly revealed or the exemplary. Third, the order may be treated as legitimate by virtue of valuerational faith: valid is that which has been deduced as absolutely demanded. Fourth, legitimacy can be ascribed to an order by virtue of positive enactment of recognized legality. Such legality can be recognized as legitimate either (a) because the enactment has been agreed upon by all those who are concerned; or (b)

15. Id. at 89.

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by virtue of imposition by a domination of human beings over human 16 beings which is treated as legitimate and meets with acquiescence.

Orders based on tradition, affect, and value rationality can be reenforced by enacted law. Also, there are other types of law than enacted law, including especially revealed law and natural law. The mode of legitimate domination through enacted law makes a sharp distinction between lawmaking and lawfinding.According to our contemporary modes of legal thought, the activities of political organizations fall, as regards law, into two categories, viz., lawmaking and lawfinding, the latter involving execution as a technical matter. Today we understand by lawmaking the establishment of general norms which in the lawyers thought assume the character of rational rules of law. Lawfinding, as we understand it, is the application of such established norms and the legal propositions deduced therefrom by legal thinking, to concrete facts which are subsumed under these norms. However, this mode of thought has by no means been common to all periods of history. The distinction between lawmaking as creation of general norms and lawfinding as application of these norms to particular cases does not exist where adjudication is 17 administration in the sense of free decision from case to case . . . .

In a modern system, lawmaking is open-ended: [A]ny given legal norm may be established by agreement or by imposition, on grounds of expediency or value-rationality or both, with a claim to obedience at 18 least on the part of the members of the organization. Once the lawmakers have established the system of legal norms, the modern legal mode of authority (legitimate domination) is defined by the further requirement that lawfinding must be impersonal:[E]very single bearer of powers of command is legitimated by that system of rational norms, and his power is legitimate in so far as it corresponds with the norms. Obedience is thus given to the norms rather 19 than to the person.

Again, there is nothing natural or automatic about this conception. It is also possible for lawfinding, like lawmaking power, to be personal:Such personal authority can, in turn, be founded upon the sacredness of tradition, i.e., of that which is customary and has always been so and prescribes the obedience to some particular person. Or, personal authority can have its source in the very opposite, viz., the surrender to the extraordinary, the belief in charisma, i.e., actual reve20 lation or grace resting in such a person as a savior, prophet, or a hero.

16. 17. 18. 19. 20.

Id. at 8. Id. at 59. Weber, supra note 12, at 217. Weber, supra note 14, at 336; see also Weber, supra note 12, at 21720. Weber, supra note 14, at 336.

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But in such a case we are not dealing with the ideal type of legal authority. 3. The Modes of Modern Legal Thought The different modes of modern legal thought are ideal typical descriptions of what is done by the specialists in lawfinding (as opposed to lawmaking) when it comes to deciding how to apply enacted law to concrete cases. These can be judges, but they can also be bureaucratic administrators, or professors critiquing judges, or professors deciding hypothetical cases. Among systems that have gotten beyond supernatural methods (oracles, trial by ordeal), and also beyond ad hoc decision, Weber distinguishes modes of legal thought according to how close they are to his unequivocally most rational mode, which he calls logically formal rationality (LFR):Present-day legal science, at least in those forms which have achieved the highest measure of methodological and logical rationality, i.e., those which have been produced through the legal science of the Pandectists Civil Law, proceeds from the following five postulates: viz., first, that every concrete legal decision be the application of an abstract legal proposition to a concrete fact situation; second, that it must be possible in every concrete case to derive the decision from abstract legal propositions by means of legal logic; third, that the law must actually or virtually constitute a gapless system of legal propositions, or must, at least, be treated as if it were such a gapless system; fourth, that whatever cannot be construed legally in rational terms is also legally irrelevant; and, fifth, that every social action of human beings must always be visualized as either an application21or execution of legal propositions, or as an infringement thereof.

An aspect of LFR that Weber reiterated over and over, but that is not found in this definition, is that the lawfinder doing LFR is restricted to the logical analysis of meaning performed on a corpus of validly enacted norms that come from the lawmaking institution, whatever it may be. LFR is found where the legally relevant characteristics of the facts are disclosed through the logical analysis of meaning and where, accordingly, definitely fixed legal concepts in the form of highly abstract rules 22 are formulated and applied.

21. Id. at 64. Webers point is not historical, but about Webers present: According to present modes of thought [systematization] represents an integration of all analytically derived legal propositions in such a way that they constitute a logically clear, internally consistent, and, at least in theory, gapless system of rules, under which, it is implied, all conceivable fact situations must be capable of being logically subsumed lest their order lack an effective guaranty. Id. at 62. 22. Id. at 63.

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LFR is most definitely not necessary in order for the mode of authority to be ideal typically legal. All that is needed is that the mode of lawfinding be sufficiently formal, i.e., rule-bound, so that lawfinding is plausibly impersonal. For example, there are types of formal legal rationality that are not logical, including particularly the English com23 mon law. Formal rationality in general, whether of the higher logical analysis of meaning type (i.e., LFR), or the more primitive British precedential type, contrasts sharply with the very important Weberian category of substantive rationality as a mode of legal thought.[S]ubstantive rationality . . . means that the decision of legal problems is influenced by norms different from those obtained through logical generalization of abstract interpretations of meaning. The norms to which substantive rationality accords predominance include ethical imperatives, utilitarian and other expediential rules and political maxims, all of which diverge from the formalism . . . which uses 24 logical abstraction.

In LFR, when the lawfinder acts, by deciding the case or making his academic interpretation of what the law is, his action is always valuerational in Webers usage. On the basis of the logical analysis of the meaning of the extant valid norms, he chooses a norm, without regard to the social consequences of his choice, and then applies it to the facts at hand, again without regard to the social consequences. This contrasts sharply with substantively rational legal thought. There, the judge may be, contrary to what some commentators suggest, acting in a valuerational way (say, by applying religious commandments such as thou shalt not kill or absolute natural rights such as respect private property). But the legal actor is also substantively rational if what he does is to identify a set of societal goals, or a set of partial political objectives of the ruler, and then craft his rule to maximize their accomplishment through a situation-sensitive balancing test. In other words, substantive legal rationality can be either value25 rational or purpose-rational (whereas LFR is always value-rational). The point about substantive rationality is not its mode of orientation to action, but the extra-juristic or external derivation of the criteria of decision, that is, their derivation from the general normative practices of society. Webers emphasis on this distinction is analogous to the preoc-

23. Weber, supra note 4, at 787, 88992. 24. Weber, supra note 14, at 6364. 25. Compare legal rationality, formal and substantive, with economic rationality, at Weber, supra note 12, at 8586 (for a better translation, see Max Weber, The Theory of Social and Economic Organization 18485 (Talcott Parsons ed., 1947)). Economic substantive rationality, like its legal sibling, involves heterogeneous criteria that may be value-rational or purpose-rational in terms of an indefinite number of value systems.

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cupation in contemporary legal theory with the question of the autonomy or relative autonomy of legal reasoning and legal institutions, 26 and with the problematics of legal autopoiesis. 4. The Three Types of Inquiry into Legal Rules Starting from his three critiques of the social approach (no is-toought, no supra-individual social telos, relative autonomy of law), and working from the categorical scheme laid out above, Weber sharply distinguished three types of questions that the socially oriented critics habitually blurred. a. Legal Validity: A Juristic Inquiry In a system that is modern or of today, we can ask what, according to legal dogmatics, is the valid legal rule for the legal scientist or the judge interested in deciding how an open legal question or a particular dispute about given facts should be resolved. This is a question of the meaning of the existing norm systembut only because that is the historically current mode of legal thought, namely LFR. This question has a completely different meaning, or no meaning at all, in other systems and in other periods. While the question of what mode of legal thought will be applied is sociological, the question of the right answer within the mode is not. It is a question answered through the application of juristic 27 technique. Judgments of validity in modern legal science are (i) not judgments about a matter of fact, but correct or incorrect interpretations of the logical requirements of the meanings of the system of norms. They are (ii) not ethical judgments, because the logical coherence and gaplessness of the system of norms provides no warrant whatever of the moral desirability or moral (as opposed to legal) validity of the norm system as a whole or of any particular norm. They are (iii) scientific judgments, because validity is established according to interpretive procedures 28 strictly bound by logic.

26. Cf. Gunther Teubner, Law as an Autopoietic System 1618, 31, 36, 39 (Zenon Bankowski ed., Anne Bankowska & Ruth Adler trans., Blackwell 1993). 27. Weber, supra note 12, at 311. 28. It seems to me that Kelsen is indeed the direct descendant of Weber. The major difference between them is that Kelsen accepts the social critique of LFR. For Weber, the framework of powers defined by public law is filled, at the level of adjudication (or academic interpretation) by doing LFR on the positively enacted norms of the system. For Kelsen, the judgment is a norm like any other norm, chosen by the judge as lawmaker, albeit within the constraining frame (his word) established by the abstract norm to be applied. See Norberto Bobbio, Max Weber e Hans Kelsen, in Max Weber e il Diritto 135 (Renato Treves ed., Sociologia del Diritto 5, 1981).

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b. Sociological Validity: A Factual Inquiry What are the norms that actually exist in a society? A factual question, requiring first an elaborate differentiation of types of normative systemall seen as subsets of regularity. For example, habit, custom, convention, law, state law. It includes both the question of the substance of the norms (e.g., are usurious contracts binding?) and the question of 29 the mode of legal thought. What causes a particular norm system to come into existence? Like the first sociological question, we can ask it about both the substance of the norm system and about the mode of legal thought. This is the main topic of Webers historical sociology of law, discussed in the next subsection. How does a normative order of the legal type (administered by a specialized staff, for example, of lawfinders) achieve legitimacy, meaning a probability of obedience higher than what can explained by the material threat of legal sanctions? This is the question of where legal norms get intrinsic oughtness, in the minds of addressees. It has nothing to do with our own view of the goodness or badness, rightness or wrongness of the norm in question. As we have seen above, legal norms can be legitimated by tradition, by charisma (e.g., by revelation), or legally, that is, by the mere fact of proper enactment. What is the impact on the behavior of social actors of factually existing systems of law, in the sense of norms backed by sanctions of various kinds administered by specialized staffs and possessing legitimacy? This is a factual question that requires us to look at what actually influences the practical, particularly the economic behavior of whatever actors we are concerned with. For example, we can ask what norms governed usury in different systems, how effectively they were enforced or evaded, and what the impact of the actual or attempted prohibition of usury was on economic development. We can ask the same kind of question about modes of legal thought. For example, we can ask about the influence of the rationalization of law on the emergence of bureaucracy, or about its influence, through its supposedly superior calculability, on economic de30 velopment. c. Ethical/Political Judgment: The Ethical Irrationality of the World On what should we base legal rules when we are choosing consciously among them? For Weber, this is an ethical/political value judgment, and one that we confront in our particular historical circumstance29. Weber, supra note 12, at 31925. 30. Id. at 31237.

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of disenchantment, a process that has affected all the different systems to which we might appeal to ground ethical/political choice by deducing answers from normative postulates or factual regularities, including particularly religion, rationalist natural law, and social science. Weber has a lot to say about this, not as a sociologist but as an ethicist in a particular tradition, and we will take it up later because it is highly relevant to the contemporary mode of legal thought. C. Webers Historical Sociology of Western Legal Thought circa 1900 Using the above complex categorical scheme, Webers sociology of law is an historical account of how the Western European great powers came to have, first, the set of legal concepts that they presently have, second, the set of substantive legal rules through which they regulate economic life, and, third, the mode of legal thought through which these rules are administered. His methodology, like that of this section with re31 spect to our contemporary mode of legal thought, is genealogical. 1. The Origins of Present Legal Categories and Legal Norms, i.e., of CLT Weber starts with the present, in which his contemporaries understand law to be divided into public and private, rights-granting and administrative, criminal and private, tort and crime, and so forth. Moreover, his contemporaries understand LFR to be the modern mode of legal thought. Next, he takes up the substantive content of a modern system of private law, which consists of what we call property and contract, commercial law, and corporate law. The system is based on the idea that there is freedom of contract unless the state limits it, which it often does, for a wide variety of reasons, along with a family law system that rejects contractualizaton and commodification of sexual relations through a status conception of marriage, and corporate law regimes that permit economic entities to function legally as self-contained units. In each case, he shows that the familiar concepts and specific rules of our modern system have a complex legal history, in which the specific economic interests of powerful groups, the agendas of political rulers, and, over and over again, the specifically technical or academic interests of legal specialists drive legal change on the way to the current setup. Just before beginning this summary history, he sums up his conclusion in a famous paragraph:

31. And eminently Nietzschean, as well as post-structuralist. See Michel Foucault, Nietzsche, Genealogy, History, in Language, Counter-Memory, Practice: Selected Essays and Interviews 13964 (Donald F. Bouchard ed., Donald F. Bouchard & Sherry Simon trans., 1977).

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As we have already pointed out, the mode in which the current basic conceptions of the various fields of law have been differentiated from each other has depended largely upon factors of legal technique and of political organization. Economic factors can therefore be said to have played their part but only to this extent: that certain rationalizations of economic behavior, based upon such phenomena as a market economy or freedom of contract, and the resulting awareness of the underlying and increasingly complex conflicts of interests to be resolved by legal machinery, have influenced the systematization of the law or have intensified the institutionalization of [political society]. . . . On the other hand, we shall frequently see that those aspects of law which are conditioned by political factors and by the internal structure of legal thought 32 have exercised a strong influence on economic organization.

The odd phrase certain rationalizations of economic behavior seems to me to mean the development of modern capitalist enterprise with great economic power; the resulting awareness is that law has a large effect on such matters as the distribution of income; and this leads to the development of state institutions designed to control or channel market forces according to the political aims of governments. However, in his actual historical account, Weber often attributes particular legal changes to the needs either of particular interest groups or to the needs of a developing economy. The above paragraph exaggerates his opposition to the Marxist approach. 2. The Development of Lawmaking Having accounted for the emergence of the specific categories and characteristic rules of a modern legal system (in a manner that is not particularly original or interesting to todays readers, I dare allege), Weber undertakes a fascinating and difficult history of legality. It combines throughout the development of his universal sociology (ideal typical categories, with hypothetical connections among them, for understanding all law in all places throughout history), and his philosophy of history 33 (his grand narrative of rationalization and disenchantment). The universal sociology roams freely around the world, from system to system, showing that such phenomena as oracles, divine revelation, law prophecy, folk assemblies, cadi justice, priestly rationalization of divine law, substantively rational patrimonial administration, and so on, are common to many systems and work in quite similar ways from system 34 to system.32. Weber, supra note 4, at 65455. 33. Wolfgang J. Mommsen, Max Weber and German Politics: 18901920 386, 40104, 44853 (Michael S. Steinberg trans., Univ. of Chicago Press 1984) (1974). 34. It has been denounced as anti-historical, because it is indifferent to context in its drive for concepts that will apply across contexts. Harold Berman & Charles Reid, Max Weber as Legal Historian, in The Cambridge Companion to Weber 22339 (Stephen Turner ed., 2000). But this is to miss its

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The philosophy of history dimension is about how the West of the European Continent, and only the West of the European Continent, arrived (a) at the sharp separation of lawmaking and lawfinding, (b) at the view that lawmaking is a secular process through which a state claiming the monopoly of the legitimate exercise of force enacts valid legal norms as compromises of conflicting interests (legal positivism), and (c) at the practice of elaboration and application of the norms (lawfinding) through LFR, that is through the logical elaboration of the meaning of the norm system taken as a whole, excluding all elements of substantive rationality (not to speak of irrational elements of various kinds). In other words, it turns out that the categorical schemes we presented above simply as a typology, were all designed to set up a particular historical narrative progression ending in the Continental present of 1900. The parts of this Euro-exceptionalist narrative that are most important for our purposes are the latest in time. The peculiar conditions that facilitate the emergence of the notion that law is made by the sovereign and can be elaborated according to LFR include, in merely chronological order: the peculiarities of Roman law; the peculiarities of canon law administered by the Papal bureaucracy; the development of academic law specialists in universities rather than in a powerful guild of legal practitioners; the peculiarities of the revival of Roman law in the late Middle Ages; the need of the seventeenth- and eighteenth-century enlightened despots to consolidate power against feudalism by alliance with the bourgeoisie combined with the development of state bureaucracies; the emergence of what Weber calls revolutionary natural law (the Rights of Man, particularly to property and freedom of contract, as the only legitimate source of positive law) in the eighteenth century (not to be confused with Catholic natural law); and the creation of the first modern code by the French in 1803. 3. Revolutionary Natural Law (The Rights of Man) We need to pause at Webers interpretation of the Rights of Man. In the chapter of Economy and Society on the sociology of law, Weber introduces revolutionary natural law as a key element in the emergence of the modern conception of lawmaking (we hold positive law to the test of natural rights) and of LFR. [T]he natural law axioms of legal rational35 ism . . . alone were able to create norms of a formal type . . . . Specifically, what happened was the elaboration of the abstract principles of revolutionary natural law, and the fragmentary, not yet sublimated

pointwhich is to find concepts that transcend context, and then use them to describe contexts as parts of larger developments. 35. Weber, supra note 4, at 867.

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provisions of the French Civil Code, into the pyramidally structured, deductive, complete system that I called above the will theory. The purest type of [formal natural law] is that . . . which arose in the seventeenth and eighteenth centuries as a result of the already mentioned influences, especially in the form of the contract theory and more particularly the individualistic aspects of that theory. He goes on to elaborate, and mock, the derivation of the rules of a laissez-faire economy from the individualistic conception. Here Weber simply appropriates the work of the social oriented critics of Classical Legal Thought (Jhering, Gierke, and Ehrlich). The construct of an individualistic will theory used to deductively elaborate a complete system was their work and not his. Revolutionary natural law clearly produces value-rational orientations to action in the form of rules that are to be observed regardless of the consequences (though it adds elements of substantive rationality in the form of reasonableness tests the minute jurists begin to elaborate it 36 into a normative system ). But how does this type of law fit into Webers typology of legitimacy? His most basic model of legal development is that tradition is disrupted by charismatic revelation of new norms that are then rationalized (this is one aspect of the famous routinization of charisma) by the specialized staffs that administer them. Charismatic revelation is at first strictly associated with the divine (oracles; revelation, as in Moses and Mohammed). Religion plays a role here, too, since Weber follows his friend Jellinek in locating the sources of the Rights of Man in the religious mo37 tivation provided by the rationalistic [Protestant] sects . . . . But natural law is not itself religious. In fact, [i]t is the specific and only consistent type of legitimacy of a legal order which can remain once religious revelation and the authoritarian sacredness of a tradition and its bearers have 38 lost their force. We have to go elsewhere in Economy and Society, to the discussion of Sect, Church and Democracy, for an explanation. The belief in the Rights of Man is thecharismatic glorification of Reason, which found a characteristic expression in its apotheosis in Robespierre, [and] is the last form that charisma has adopted in its fateful historical course. It is clear that these postulates of formal equality and economic mobility paved the way for the destruction of all patrimonial and feudal law in favor of abstract norms and hence indirectly of bureaucratization. It is also clear

36. Id. at 870. 37. Id. at 868. 38. Id. at 867.

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that they facilitated the expansion of capitalism. The basic Rights of Man made it possible for the capitalist to use things and men freely, just as this-worldly asceticismadopted with the same dogmatic variationsand the specific discipline of the sects bred the capitalist spirit 39 and the rational professional . . . who was needed by capitalism.

4. Natural Law Disintegrates into Legal Positivism Natural law, and the individualistic will theory developed from it, disintegrated, according to Weber, during the second half of the nineteenth century. The reasons are the following: First, the rise of socialist substantive natural law theories proclaiming the right to work, the right to a minimum standard of living, the right to the full product of ones labor, and more. Second, natural law doctrine was destroyed by the evolutionary dogmatism of Marxism, while from the side of official learning it was annihilated partly by the Comtean evolutionary scheme 40 and partly by the historicist theories of organic growth. In other words, Classical Legal Thought, as the will theory, was destroyed by its two enemies, namely Marxist theory and the socially oriented reform theory (the latter was official only in Bismarcks Germany). Weber sums up his diagnosis in a famous passage:Compared with firm beliefs in the positive religiously revealed character of a legal norm or in the inviolable sacredness of an age old tradition, even the most convincing norms arrived at by abstraction [from natural law axioms] seem to be too subtle to serve as the bases of a legal system. Consequently, legal positivism has, at least for the time being, advanced irresistibly. The disappearance of the old natural law conceptions has destroyed all possibility of providing the law with a metaphysical dignity by virtue of its immanent qualities. In the great majority of its most important provisions, it has been unmasked all too visibly, indeed, as the technical means of a compromise between con41 flicting interests.

Webers Sociology of Law Incompatible with the Socially Oriented View of CLT There are two further striking traits of Webers historical sociology of law that we need to note, just because they distinguish his attitude from that of the social critics. a. Historicizing the Substantive Content of CLT Whereas each of the schools mentioned above (historical school, utilitarians, Kant or Locke natural rights people, social Darwinists) had believed that we got to the will theory through the development of an idea, he showed that the free contract/property regime was best under39. Id. at 120910. 40. Id. at 874. 41. Id. at 87475.

5.

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stood as an historical accident, with many diverse causes, and many of the causes were disreputable. This idea was incompatible with the critique developed by the social people, because their theory made CLT a highly adequate adaptation to past conditions favorable to individualism (e.g., the yeoman theory in the United States; the early modern postfeudal situation in Europe). b. The Freedom/Coercion Flip The various schools who agreed on the will theory, and that it was the working out of an idea, also agreed that the idea that got worked out was freedom, or at least autonomy. Weber argued that, far from the realization of the will or of freedom, the modern order of freedom of con42 tract and property was a regime of coercion. Although the social people had themselves extensively developed the notion that unequal bargaining power rendered formal equality practically meaningless, Webers stark approach was incompatible with the social approach for two reasons: It presented the choice as between modes of coercion, with different distributive outcomes and different consequences for economic growth, period. For the social, the idea of adaptation to the functions, purposes, or needs of society provided an objective basis for good law (from is to ought), law that would correctly adjust the needs of the individual to the needs of the collective, so a tragic choice between coercions was the last thing they had in mind. Their rhetoric emphasized that their opponents were social scientifically vieu jeu, rather than that they were invested in a mode of domination. D. Webers Ambivalent Attitude Toward Logically Formal Legal Rationality 1. The Social Critique of CLT: The Abuse of Deduction The social critique of CLT was that it failed to develop the rules needed for the new game of interdependence, for two reasons. The first was its ideological commitment to individualism, an outdated philosophy both as description and as norm. Second, according to the social people, CLT people understood themselves to operate as interpreters (judges, administrators, law professors) according to a system of induction and deduction premised on the coherence, or internal logical consistency, of the system of enacted legal norms. One mode was to locate the applicable enacted rule; a second was to develop a rule to fill a gap by a chain of deductions from a more abstract enacted rule or principle; a third, the method of constructions, was to determine what unenacted principle must be part of the system, given the various enacted elements in it, if42. Id. at 72931.

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we were to regard it as internally coherent, and then derive a gap filling rule from the construction. It is important to recognize that, like his model of the will theory, Webers ideal type of LFR, which he treats as the highest type of legal rationality, is in every way identical to the ideal type developed by the social people, here Jhering, Ehrlich, and especially Gny, to describe CLT. LFR, as a descriptive category, is theirs not his. The difference between him and them was in their respective attitudes toward this mode understood as highly typical of actual late nineteenth-century practice. In the social analysis, because interpreters must always be logically compelled in one of these ways, they could never legitimately work consciously to adapt the law to the new conditions of the late nineteenth century. Nonetheless those conditions constantly presented them, as interpreters with gaps. What the CLT people had to do, to stay loyal to their role as they conceived it, was to abuse deduction. They had to make decisions reached on other grounds look like the operation of deductive work premised on the coherence of the system. And the abuse of deduction permitted the smuggling in not of the general desiderata of social evolution, but of the partisan ideologies of the parties to the conflicts between labor and capital, large and small business, of the centurys end. In response, the social people had four positive proposals: (a) from the social is to the adaptive ought for law; (b) from the deductive to the instrumental approach to the formulation of norms; (c) not only by the legislature but also by legal scientists and judges and administrative agencies openly acknowledging gaps in the formally valid order; (d) anchored in the normative practices (living law) that groups intermediate between the state and the individual were continuously developing in response to the needs of the new interdependent social formation. We know already that Weber had no use for the first point. We now take up his critique of the remaining three. 2. Webers Pros and Cons of LFR Webers attitude toward LFR as characteristic of CLT was highly ambivalent. He was aware of the social critique of CLT for the abuse of deduction, and he was careful always to treat logically formal rationality as an ideal type never fully achieved in practice and maybe even theoretically unachievable. It has its origin, like the substance of modern law, in historical accidents rather than any cunning of history. But the source of his ambivalence had nothing to do with the kind of internal critique of abuse of deduction that the social people leveled against it. Quite the contrary.

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a. The Cons of LFR LFR was a factor in producing universal bureaucratization of social life, and bureaucracy was equally characteristic of the state apparatus, private capitalist business enterprises, charitable organizations, and churches. Bureaucracy would have to be the characteristic mode of organization of a socialist state and society (state ownership of the means of production would require an increase rather than a decrease in bureaucracy). Moreover, it was bureaucracy rather than either the state or the capitalist market in the abstract that most substantially restrained individual freedom and agency in the modern world. The basic political/ social problem of modernity was therefore not the choice between capitalism and socialism but the choice between ever increasing bureaucratization and whatever alternative might be found. Together with the argument that the contract/property regime was one mode of coercion among others rather than the realization of human freedom, the argument for universal bureaucratization as the essence of modernity amounted to a radical rejection of the public/private distinction, as it had developed, first, in liberal and then, in dialectical opposition to the liberal formulae, in socialist thought. The choice was neither between private freedom and public servitude (the liberal version) nor between capitalist servitude and freedom through the collective (the socialist version). Note just how different this mode of critique is from the abuse of deduction idea. Here it is the determinacy, the calculability of LFR that is the problem, rather than the reverse. b. The Pros of LFR But, on the other hand, LFR is how we do it now, it is what we mean by dogmatic legal analysis or legal science, and it would be silly to deny that it exists and is a force in the world. It has many of the good attributes that make bureaucracy, both public and private, the most efficient form of administration, by comparison with which the alternatives are mere dilettantism. In particular, it has an important role in guaranteeing that bureaucracy is calculable and can proceed sine ira ac studio. It is associated as well with accomplishments of the liberal revolutions, in the way of formal equality, democracy, and due process that, we cannot deny, have transformed our world for the better. LFR, because it operates by the logical analysis of meaning and then the deductive application of norm to facts, guarantees the impersonality of legal administration. That is, it guarantees that only the legislator, who has the right to make law, makes it in fact.

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Many of the same results can be and indeed have been achieved by the lower form of formal rationality represented by the common law. Weber, moreover, concedes that while calculability is crucial to capitalism, LFR is notindeed, capitalism flourished first under the common law, and when the systems compete, the common law tends to win out. But the reasons for this are no credit to the Anglo-Saxons. It is the highly biased irrationality of their system (e.g., the cadi justice of justices of the peace to repress the rural masses), that largely explains their success. The common law may have worked, but there is no aspect of it that Weber 43 sees as on the same level of development as Continental LFR. Closer to home, both the substantive rationality of welfarism (i.e., Enlightened Despotism) and natural law, whether elaborated deductively from individualist premises or as a socially oriented substantive doctrine, have proved failures at the task of providing operative techniques for the development of a legal order adapted to the needs of the administration of justice in a centralized bureaucratic state. That was the whole point of his narrative of the displacement of natural law by positiv44 ism. LFR was, in this view, a big advance, but, more important, it was all that was left of the ambitions of legal rationalism as a general phenomenon. 3. Webers Dismissal of The Anti-Formal Tendencies of Modern Law The anti-formal tendencies of modern law are, according to Weber, multiple. They include the tendency of formal law to adopt subjective rather than objective tests of intention, and subjective ethical notions like good faith, in response to the need of the business community for legal standards that will correspond to the needs of business practice. Other pressures in the same direction includedthe demand for substantive justice by certain social class interests and ideologies; . . . the tendencies inherent in certain forms of political authority of either authoritarian or democratic character concerning the ends of law which are respectively appropriate to them [i.e., democracy appeases the masses anti-formally, and authoritarianism keeps power anti-formally]; and also the demand of the laity for a system of justice which would be intelligible to them; finally, . . . anti-formal tendencies are being promoted by the ideologically rooted power aspirations

43. Id. at 778, 88992; cf. Sally Ewing, Formal Justice and the Spirit of Capitalism: Max Webers Sociology of Law, 21 Law & Socy Rev. 487, 487512 (1987); David M. Trubek, Max Weber on Law and the Rise of Capitalism, 1972 Wis. L. Rev. 720, 72053 (1972); David M. Trubek, Max Webers Tragic Modernism and the Study of Law in Society, 20 Law & Socy Rev. 573, 57398 (1986); David M. Trubek, Reconstructing Max Webers Sociology of Law, 37 Stan. L. Rev. 919, 91936 (1985). 44. Weber, supra note 4, at 87375.

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of the legal profession itself.

This set of demands, Weber concedes, responds to the fact that [t]he development of the formal qualities of the law certainly shows 46 some peculiarly antinomian traits, and has produced a body of modern sociological and philosophical analyses, many of which are of a high 47 scholarly value. But all of them fly in the face of modern reality. Weber understood himself to be addressing a complex of positions and attitudes, including demands for a social law to be based upon such emo48 tionally colored ethical postulates as justice or human dignity. The school of free law tried to show that there would be gaps in every statutory scheme, in view of the irrationality of the facts of life, and that in countless instances the application of the statute as interpreted is a delusion, and that the decision is, and ought to be made in the light of 49 concrete evaluations rather than in accordance with formal norms. In the same direction were theories, here presumably speaking of Ehrlich, according to which the true foundation of the law is entirely sociological, meaning that judges should respond to norms which are factually valid in the course of everyday life and independently of their 50 reaffirmation or declaration in legal procedure. . . . Even further in the same vein, some scholars (Ehrlich again?), first, degrade statutory enactment to a mere symptom of sociological validity, and then argue that no precedent should be regarded as binding beyond its concrete facts, to reach the conclusion that the judge should engage in free bal51 ancing of values in each individual case. In response to these theories, neo-Kantians (Stammler?), Comteans (Duguit?), and Catholic natural lawyers propose rational reconstructions 52 that will reestablish an objective standard of values. Putting them together, the set of anti-formal tendencies are agreed only in their rejection of the once universally accepted and until recently prevalent petitio 53 principii of the consistency and gaplessness of the legal order. Webers response remains puzzling. As he lays out the positions, he repeatedly points out that what is proposed is a reversion to substantive 54 justice, is a challenge to legal formalism, and, here is the key charge,45. 46. 47. 48. 49. 50. 51. 52. 53. 54. Id. at 894. Id. Id. at 895. Id. at 886. Id. Id. at 887. Id. at 888. Id. Id. at 88889. Id. at 886.

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that the reformers, in view of the inevitability of value-compromises, very often [would] have to forget about abstract norms and, at least in cases of conflict, would have to admit concrete evaluations, i.e., not only 55 nonformal but irrational lawfinding. Weber here uses the word irrational, according to his categorical scheme, to refer to decision that is oriented to the facts of the particular case rather than to rule application. In context, this means that because of ideological conflict, on the one hand, and the vagueness of notions like social justice, on the other, the judge will have to decide each case on its facts. The general program that he attributes to the anti-formal thinkers fits well with this conclusion, since Weber sees them, as noted above, as committed to freeing the judge up for the balancing of values in every case. At the least, the juristic precision of judicial opinions will be seriously impaired if sociological, economic, or ethical argument were to take the place of legal con56 cepts. Although he did not present it in this section, Weber had a sharp critique of the notion that the living law developed by intermediary groups, in the mode of Gierke and Ehrlich, should be regarded as having ethical warrant or a claim to being responsive to social needs, just because of its organic origin. Although he is happy to categorically deny that law exists only where legal coercion is guaranteed by the political 57 authority, there is never the slightest suggestion that customary law is in any way more adaptive or otherwise valuable than state law. The interests that drive social development are always those of individuals or 58 competing social groups, and never those of society. He teasingly points out that, given the way Continental judges are recruited and trained, it is by no means certain that those classes which are negatively privileged today, especially the working class, may safely expect from an informal administration of justice those results which are claimed for it 59 by the ideology of the jurists [i.e., the social people]. Instead of developing this kind of critique, Weber repeatedly notes that the socially oriented reformers represent the desire of the legal profession to avoid the status degradation associated with the rationalization 60 of a once learned and autonomous occupation. And then, after elaborately summarizing the arguments, he ends abruptly: At this place we cannot undertake a detailed discussion or a full criticism of these tenden-

55. 56. 57. 58. 59. 60.

Id. Id. at 894. Weber, supra note 12, at 316. Weber, supra note 4, at 75360. Id. at 893. Id. at 886, 889, 894.

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cies which, as our brief sketch has shown, have produced quite contradic61 tory answers. True to his word, he does not make a serious effort to come to grips with the socially oriented critique of LFR except to reiterate the charge of irrationalism, and add an interesting analogy to religion. (Remember that proposals for ad hoc judicial decision or the balancing of values from case to case fall under Webers definition of methodological irrationality.)All variants of the developments which have led to the rejection of that purely logical systematization of the law as it had been developed by Pandectist learning, including even the irrational variants, are in their turn products of a self-defeating scientific rationalization of legal thought as well as of its relentless self-criticism. To the extent that they do not themselves have a rationalistic character, they are a flight into the irrational and as such a consequence of the increasing rationalization of legal technique. In that respect they are parallel to the irration62 alization of religion.

In the last paragraph of his sociology of law, Weber has this to say to all the tendencies that want to openly acknowledge judicial discretion and infuse lawfinding with self-conscious concern for substantive justice: Inevitably the notion must expand that the law is a rational technical apparatus, which is continually transformable in the light of expediential 63 considerations and devoid of all sacredness of content.

III. Logically Formal Rationality in Webers Sociology of Domination Webers attitude toward the social abuse-of-deduction critique of LFR seems strange in light of the developments in legal theory over the last century. Webers treatment of its inventors seems in retrospect dismissive at best and often tendentious or obtuse. He failed to distinguish the critique of the abuse of deduction from the various kinds of, at that point, embryonic alternatives being bruited about, and particularly insisted on associating the anti-formal critique with cadi justice. To put it bluntly, since he wrote, the socially oriented critique of LFR has won close to universal acceptance, even though the solution of case-by-case adjudication has been equally universally rejected. In modern legal theory, the single most important question is what to do after the demise of LFR, and this is a question Weber resolutely refused to face. In this section, I offer an explanation for Webers stance, based on the place of LFR in Webers sociology of domination in modern society. We have seen already that, in this sociology, the modern system of prop61. Id. at 888. 62. Id. at 889. 63. Id. at 895.

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erty and contract law, bureaucratically administered, structuring a market economy also bureaucratically administered, constitutes a pervasively coercive social order, rather than either the realization of human freedom or an invitation to socialist reform. I will argue that, in order for this position to make sense, Weber had to defend LFR against the social critique. A. Religion, Rationalization, Disenchantment, Mysticism: The Iron Cage Narrative In Webers general sociology, the domains are religion, science, poli64 tics, the economy, sexuality, and art. There are complex analogies in the evolution of the domains, established through a basic conceptual vocabulary that includes the concepts of rationalization, disenchantment, bureaucratization, irrationalization, and sectarianism. It is striking that in his philosophy of history writings, Weber does not, as far as I know, ever offer an analysis of the legal domain that establishes the analogies with these other ones. This in spite of the fact that he wrote an enormous amount about law, and characterized law in ways that are full of parallels with the others, including the importance of specialists and specialized knowledge, bureaucratization, and, above all, rationalization. In fact, Weber treats the development of LFR as of prime importance both to politics and to economics. The rise of the modern bureaucratic state is intimately intertwined with LFR, and LFR makes that state a calculable element in the economy. At the same time, the administration of large corporations comes to resemble more and more closely the administration of the state apparatus. But law is just as intimately important to the evolution of religion and science. The rationalization of religion is partly a matter of the development of the first bureaucracy by the Catholic Church, and a large part of that bureaucracys function was the rational development and application of canon law. The modern university, which is the producer of modern science, is a state institution with an internally bureaucratic organization as well. There is the same double relevance of law: organized religions develop religious law, and do it bureaucratically; universities develop scientific laws, and do it bureaucratically. The metanarrative: Initially, all the domains, and those of sex and art as well, are bound together in religion. Religious thought struggles for a rational answer to the question of theodicyor of the apparent ethical

64. The discussion that follows is based on Religious Groups (The Sociology of Religion), in Weber, supra note 4, at 399, and on Science as a Vocation, Politics as a Vocation, The Social Psychology of the World Religions, and Religious Rejections of the World and their Directions, in Weber, supra note 8, at 129, 77, 267, 323.

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irrationality of the world (the good suffer, the evil are rewarded). The attempt to find a rational answer sets us down a path of disenchantment as it turns out to be possible to explain more and more of what happens in the world without positing miracles, and then without positing the existence of God. Rationalization is the work of science. Disenchantment is an existential or phenomenological category. It means loss of belief that humans arrive at birth in a material and social world where events are part of a system of ethical meaning (one that includes supernatural powers) that we have merely to discover. The knowledge of the world as a place of cause and effect goes along with the gradual development of the science of norms, that is of how to use legal technique to organize people in the state and the economy. What is disenchanted here is, first, divinely revealed laws of social organization, and, second, the divine right of kings and other authorities (all the way down the great chain of being to the level of, say, the manor) to issue legitimate commands. Together with scientific disenchantment, political disenchantment allows a vast increase of power over the material world, so long as we use the power for secular ends. This is rationalization. Its highest accomplishment is bureaucratization in state and economy. But religion does not go away. It struggles against science and against legal disenchantment to affirm cosmic meaning accessible to reason, but it also retains and develops irrational tendencies, such as mysticism. It is more and more forced to concede that the world works without direct divine intervention and that reason cannot find the worlds ethical meaning simply by rational interpretation of what we know about it. But it insists more and more strongly that there are other truths, ways of knowing, and experiences, than those that are made intelligible through the techniques of disenchantment, or mastered for secular ends through rationalization and bureaucracy. The organizational correlate of religions surrender of science and the state to secular forces is religious sectarianism. The process of polarization, so to speak, in which religious meanings are more and more to be found by the individual seeker beyond the domains of secular activity undermines, though only slowly, the aspiration to theocratic rule, or even to the religious organization of society through establishment. The end result is the transition from church to sect, which is a voluntary community of believers existing in the private sphere of civil society

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without public powers and functioning within the states regime of civil 65 law. (This strongly resembles Marxs essay On the Jewish Question. ) When Weber describes the anti-formalism of the social people as a disparate set of irrational reactions to the rationalization of legal science, it is to this version of religious development that he refers. It is not a flattering allusion. He clearly regards disenchantment not just as inevitable but as a process whose truth for us only grown up babies, as he puts it, can deny. He recognizes the fact of mystical otherworldly experience, but does not see it as even a little challenge to disenchantment and rationalization within actual social practices. Anti-formal reactions within the actual social practice of law are destined to well deserved defeat if all we can say for them is that they are the analogue to the flight into mysticism and sectarianism in religion. In this version of the metanarrative, all the emphasis is on the power of the autonomous logics of state and economy, their imperviousness to transformation through religion, and the foolishness of resisting the benefits that come along with acceptance of rationalization. Of course, the situation has the downside that the autonomous logics are logics of domination, and that a disenchanted world has a basic grimness because of our nostalgia for lost meaning, even if we have the refuge of manly embrace of the partial ethic of our particular calling within one of the domains. Our modernity is further redeemed, to however limited an extent, by the existence of two other domains, love/eroticism and art, which split from religion through a process closely linked to disenchantment in economy and polity. With the decline of public religious power, they are capable of holding their own and even developing their autonomy as concrete social practices against the perennial hostility of religion. Eroticism and art for arts sake are self-consciously irrational, and selfconsciously resistant, as yet, to modern-style social control. Nonetheless, they are in the shadow of rationalization and bureaucratization (sexual science, Foucaldian institutions of sexual discipline; art theory, art markets, museums). We might add (Weber does not) that they develop their own intense sectarianism, in the form of the warring art movements and sexual ideologies.

65. Karl Marx, On the Jewish Question, in The Marx-Engels Reader 2652 (Robert C. Tucker ed., 2d ed. 1978) (1843).

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B. The Disenchantment of Lawmaking and the Scientificity of LFR The Disenchantment of Lawmaking (Not of LFR) Fits the Metanarrative The coherence of this picture of modernity is promoted by a version of the history of modes of legal thought that emphasizes the progressive disappearance of value-rational sources for the legitimacy of legal/ bureaucratic domination. As we have seen in Part II above, Weber offers just such a narrative. Ultimate norms are first legitimated by tradition, with change brought about by charismatic revelation claiming a divine origin. Charismatic revelation is routinized in theocratic regimes into religious law, of a more or less formally rational character. Then, as we have seen, there is the last gasp of charisma in the form of revolutionary natural law (the Rights of Man) quickly routinized into a deductive legal science, and equally quickly discredited by positivist critique of its fanciful state of nature myths, vagueness, and internal inconsistencies. Another important factor is the rise of the variants of the social ideology, splitting the charismatic camp and reducing its plausibility as pure reason. All the while, logically formal rationality and state bureaucracy are emerging downstream, so to speak, from the battles at the abstract level of God versus Reason, just as rational economic practices develop in the shadow of medieval and early modern monarchical absolutist controversies about how to secure the welfare of the populace. Theories of natural law are in fact the last representatives not just of charismatic law giving but also of pre-modern enchantment as a general phenomenon. In the words of Colliot-Thlne:The structure that determines the recent evolution of natural law doctrines (Enthllung, or unveiling[of legal norms as merely compromises of conflicting interests]) is closely related to that of disenchantment: the veil is lifted on the reality of law, as the charm is removed that had more generally hidden from prior generations the prosaic character of the here-below. In the brief span of a century, or rather of a few decades, the concept of law repeated, on a smaller scale, the very process of desacralization and elimination of transcendence that at a general level engenders modernity. The formalist definition of the legal mode of domination recognizes this twice over reduction, within which the second in time [unveiling of law as mere compromise] brings the first [general disenchantment] to a close at the same time that it reproduces it. If natural law was the only form of legitimacy that remained after the disappearance of belief in religious revelations or the sacredness of tradition, formal legal rationality was in turn all that remained of the legitimacy of the Rational State once the values on

1.

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which that legality had originally rested had lost their persuasive 66 power.

Webers Commitment to the Scientificity of LFR Explained as Necessary in Order for Modernity to Be an Iron Cage It is at least plausible, it seems to me, that Webers dismissal of the anti-formal social as irrational had one of its origins in the role of LFR in his theory of modernity as I have just sketched it. Weber is committed to the tragic situation of loss of meaning within a system of domination by the autonomous logics of the spheresthis is the famous Iron Cage of modernityredeemed only by the possibility of stoic pursuit of a vocation and the private pursuit of the erotic and the aesthetic. The scientificity of LFR is essential here because it is the glue that holds the rational/bureaucratic structure of domination together after disenchantment has deprived it of all external traditional or charismatic legitimations. The following seems to me a key to Webers whole sociology, and it is pretty brilliant besides, and so worthy of quotation at length:Present-day economic life rests on opportunities acquired through contracts. It is true, the private interests in the obligations of contact, and the common interest of all property holders in the mutual protection of property are still considerable, and individuals are still markedly influenced by convention and custom even today. Yet, the influence of these factors has declined due to the disintegration of tradition, i.e., of the tradition-determined relationships as well as of the belief in their sacredness. Furthermore, class interests have come to diverge more sharply from one another then ever before. The tempo of modern business communication requires a promptly and predictably functioning legal system, i.e., one which is guaranteed by the strongest coercive power. Finally, modern economic life by its very nature has destroyed those other associations which used to be the bearers of law and thus of legal guaranties. This has been the result of the development of the market. The universal predominance of the market consociation requires on the one hand a legal system the functioning of which is calculable in accordance with rational rules. On the other hand, the constant expansion of the market, which we shall get to know as an inherent tendency of the market consociation, has favored the monopolization and regulation of all legitimate coercive power by one universalist coercive institution through the disintegration of all particularist statusdetermined and other coercive 67structures which have been resting mainly on economic monopolies.

2.

Given the effacement of traditional and charismatic authority, as well as of the non-state institutions that once guaranteed order, we could66. Catherine Colliot-Thlne, Le Dsenchantement de ltat. De Hegel Max Weber 238 (1992). The translation is the Authors. 67. Weber, supra note 4, at 33637.

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not speak of a rationalized, bureaucratized set of domains constituting an iron cage of particular logics if we did not believe that LFR could function, at least in a gross way, to put the dominant order into effect at the level of application. And the moral picture of tragic loss of meaning would no longer be plausible if within the key domain of legal practice there was the possibility of redemption by the reintroduction, antiformally, of substantive ethical elements. If that were the case, all bureaucrats would have the possibility of agency within their jobs, rather 68 than being condemned to vocational formalism.

IV. The Disenchantment of Logically Formal Rationality Here begins a second Weberian narrative, in which his sociology works strongly against his own interpretation of modernity in general, and against his defense of LFR in particular.A. Rehabilitating the Irrational Moment Within Rationalized Domains 1. The Irrational Moment in Economy, Science, and Politics In the last narrative, religion retreated into mysticism, confronted by the overwhelming theoretical success and practical power of rationalization in science, state, and economy. But there is another Weberian narrative running parallel to this one. In science, state, and economy, under conditions of bureaucratization, there remains an irreducible irrational element to the activity within each domain. In the Iron Cage discussion, the logics of the domains are both unitary and irresistible, but in conflict with one another. In this second narrative the logics of the domains produce, over and over again, situations of undecidability. Because this point is more familiar for state and science than for the economy (Politics as a Vocation and Science as a Vocation), we can begin with the economy. The most developed modern bureaucratic economic systems run partly on the charismatic irrational principle represented by entrepreneurship as risk-taking, by the management of monopolies, and specifically by Robber Baronage. Webers Robber Barons are individuals who manage to operate outside the constraining logic of competitive price determination, taking advantage of opportunities that are objectively present but also capitalizing on their own charismatic qualities. In science, it turns out that creativity is not reducible to bureaucratically determinable characteristics that govern the specialized subdomains of the modern university. It involves an agonistic, irrational, in-

68. Cf. Duncan Kennedy, A Critique of Adjudication [fin de sicle] 33976 (1997).

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tuitive moment without which no amount of learning and technique can accomplish anything of note. In politics, there is a similar split: The state is reduced more and more to a bureaucracy administering a rule system according to LFR, but the politicians are engaged in fighting for power, and have to make decisions with big ethical implications using an ethical apparatus that is internally contradictory and so often leaves them just having to decide. This is the much commented on Schmittian 69 element in Webers thought, shared with other post-Nietzschean modes, 70 such as existentialism. At this point in the analysis, science, economic management, and politics have more in common with love/eroticism and art than at first appeared. Each is a domain split internally between a bureaucratic element operating according to LFR and an irrational but equally essential element within which LFR does not operate, and neither do more mundane techniques for rationally deciding what to do. The problem is not just that each domain has a logic and the logics 71 (or Gods, in Webers terminology) are at war. The situation is much more dramatic, because within the part of each domain where LFR does not operate, there are irreducibly conflicting principles at work, rather than a single logic. Loyalty to ones vocation turns out not to be an answer to the disintegration of the world into antagonistic value-spheres, because antagonism is present within each sphere. This is where sectarianism comes in. Just as religious irrationalism favors religious sectarianism, the irreducibly irrational in politics favors ideological sectarianism and nationalism. In the economy, it favors national economic rivalry even against the logic of the market. Only in science, in Webers view, does the power of the rational grid confine irrationalism to the moment of individual creativity (what would Thomas Kuhn say about that?). Let me hasten to say that the reading I have just proposed is at least as partial as the previous one, in which science, state, and economy starkly oppose religion, sex, and art. It is moreover an ideal typical rendering of disenchantment as a general phenomenon, and I have embellished Webers account to give it an internal consistency that will be

69. Colliot-Thlne, supra note 62, at 21314; Michel Coutu, Max Weber et les Rationalits du Droit 20627 (1995); Mommsen, supra note 35, at 44850; Pier Paolo Portinaro, Max Weber e Carl Schmitt, in Max Weber e il Diritto 155 (Renato Treves ed., Sociologia del Diritto 5, 1981). Anthony Kronmans often useful study, Max Weber (1983), seems to miss this crucial aspect of Webers thought. 70. Cf. Duncan Kennedy, A Semiotics of Critique, 22 Cardozo L. Rev. 1147 (2001). 71. On this aspect, see Harvey Goldman, Politics, Death, and the Devil: Self and Power in Max Weber and Thomas Mann 5672, 7478 (1992).

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useful, I hope, in the analysis of the fate of LFR in the contemporary mode of legal thought. With the caveats in place, the parallels among the domains might be reductively represented as follows:WEBERS GRAND THEORY Disenchantment Rationalization Bureaucratization Irrationalization Sectarianism RELIGION no more miracles = God withdraws or hides (Pascal) conduct/salvation calculus; canon law Church invents bureaucracy charisma, mysticism and vocation Protestant sectarianism SCIENCE nature has no intentions mechanical model of cause and effect university specialization scientific creativity and vocation ECONOMY production disengaged from religion profit maximizing, accounting division of labor within an enterprise en

the disenchantment of logically formal legal rationality

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